Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73 .202{b) ) MB Docket No. 04-319 Table of Allotments, ) RM-I0984 FM Broadcast Stations. ) (Coal Run, Kentucky and Clinchco, Virginia) ) FILED/ACCEPTED To: Office of the Secretary JUL 18 2011 (Attention: The Commission) Federal Communications Commission Office of the Secretary MOTION FOR STAY Dickenson County Broadcasting Corp. ("Dickenson"), licensee ofWDIC-FM, Channel 221A, at Clinchco, Virginia, by its attorneys, pursuant to Section 1.102{b){3) and 1.1 I5(h) ofthe Rules, hereby files this Motion for Stay of the action ofthe Chief, Audio Division taken in the Memorandum Opinion and Order, DA 11-1072, released June 17,2011 ("MO&O,,).1 In Amendment afSection 1.420(/) ofthe Commission's Rules Concerning Automatic Stays ofCertain Allotment Orders, 11 FCC Red 9501 (1996) ("Stay Order"), the Commission eliminated the previous practice of automatically staying orders in rule making proceedings that were under reconsideration or review. Therefore, Dickenson is filing this Motion for Stay. The action taken in the MO&O is based on erroneous facts and must be reversed. In a separate pleading, Dickenson is today filing an Application for Review ofthe MO&O 1 Under Section 1.4G) of the Rules, Dickenson is timely filing this Application for Review within 30 days of the release of the MO&O on July 18, 2011, since the 30th day following release of the MO&O fell on a Commission holiday. As the MO&O is a document in a notice and comment rulemaking proceeding, it must be published in the Federal Register, and public notice runs from the date of publication. As of July 18,2011, the MO&O had not been published in the Federal Register. Dickenson is filing today in an abundance of caution; however, Dickenson reserves the right to supplement this Application for Review should the MO&O be published in the Federal Register. "< f/Of"d f\.\J ~)!i ; ~ ;,..w-lL.!-l--. ...._--_ ..._..._._--_... _--­ I. Background The MD&D granted a Petition for Reconsideration filed by East Kentucky Broadcasting Corporation ("East Kentucky"), licensee ofStation WPKE-FM, Coal Run, Kentucky, ofthe Audio Division's action in Coal Run, Kentucky, and Clinchco, Virginia (Report and Order), 22 FCC Rcd 5347 (MB 2007) ("R&D"). The 2007 order had denied East Kentucky's Petition for Rille Making proposing to substitute FM Channel 221C3 for Channel 276A at Coal Run, to modify Station WPKE-FM's license accordingly, and change the operating channel ofWDIC-FM, Clinchco, from 221A to 276A to accommodate East Kentucky. Initially, in the R&D [published April 4, 2007 in the Federal Register as 72 Fed. Reg. 16315] ("R&D"), the Audio Division correctly denied East Kentucky's proposal. In the MD&D, the Audio Division, inter alia, agreed with East Kentucky that the R&D misapplied Section 73.211 ofthe Rules, reinstated the petition for rule making and reexamined East Kentucky's proposed upgrade. Dickenson showed that there was significant doubt as to whether East Kentucky's reference site was technically feasible and that a station operating from that site would not place the required "city-grade"signal over Coal Run, as required by Section 73.315 ofthe Commission's Rules. The Audio Division rejected Dickenson's arguments and found that East Kentucky had demonstrated compliance with Section 73.315 ofthe Rules. Dickenson's Application for Review demonstrates otherwise. II. Under the Circumstances, a Stay is Warranted Absent a stay, effective August 1, 2011, the Audio Division intends to involuntarily substitute Channel 276A for Channel 22lA at Clinchco, Virginia, and modify the license of Station WDIC-FM to reflect the change, but this action should be stayed pending the final outcome ofthis proceeding. There are procedural as well as substantive reasons that merit a 2 stay. MO&O Not Yet Published in the Federal Register. Initially, a stay must be imposed because the rule changes cannot go into effect until the MO&O is published in the Federal Register, which has not yet occurred, despite the best efforts of counsel and his paralegal to discover whether publication has taken place. This proceeding is a rule making proceeding, despite the changes in 2006 to the way in which the Commission processes applications seeking involuntary channel changes. It started out that way in 2004 and must be terminated in the same manner; i.e., by publication in the Federal Register. Title 5 U.S.C. Section 533(d) (the Administrative Procedure Act or APAi requires that a substantive rule be published not less than 30 days before its effective date, except "as otherwise provided by the agency for good cause found and published with the rule." There is nothing in the MO&O that discusses the Federal Register, much less provides good cause for dispensing with publication.3 Whereas, the R&O was published in the Federal Register, it terminated the proceeding without making a change in the FM Table of Allotments.4 The current MO&O is a document in a notice and comment rule making proceeding, which is a matter of general applicability and, under Section 1A(b)(1) ofthe 2 Section 553 (d) of the APA provides: The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except­ (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule." 3 The only reference to the Federal Register in the MO&O is found in footnote 19 where Dickenson's argument was trivialized that it had been prejudiced by East Kentucky's proceeding under Section 1.106 rather than 1.429, thus forcing Dickenson to respond more quickly to East Kentucky's petition than would otherwise be required. 4 Because East Kentucky started its attempt to change the channel ofWPKE-FM and WDIC-FM by rule making, rather than by application, and the MO&O is a document in MB Docket No. 04-319 (see caption), it does not appear that the new procedures adopted in Revision ofProcedures Governing Amendments to FM Table ofAllotments and Changes ofCommunity ofLicense in the Radio Broadcast Services, 21 FCC Rcd 14212 (2006) apply so as to avoid publication in the Federal Register. In that Report and Order, the Commission announced that the FM Table of Allotments, Section 73.202 ofthe Rules, would "henceforth contain only vacant allotments, and that authorized full­ power non-reserved band FM facilities already occupying allotments shall be listed only in the Media Bureau's Consolidated Data Base System ("CDBS")." 3 Rules, the applicable public notice date would be 30 days after publication in the Federal Register. Boulder Town, Levan, Mount Pleasant, and Richfield, Utah I 25 FCC Rcd 8232 (2010), citing, Prineville and Sisters, Oregon, 8 FCC Rcd 4471 (MMB 1993). Thus, until the MO&O is published in the Federal Register, it can have no effect. The importance of proper notice was recently emphasized in Prometheus Radio Project v. FCC (U. S. Ct. App. 3rd Cir.) Case No. 08-3078, et al (2011 U.S. App. LEXIS 13855), July 7, 2011 (Order vacated and remanded for failure to comply with the AP's notice and comment requirements). Substantive Reasons to Stay the Effective Date Great Harm to Dickenson Will Result Absent a Stay. In the Application for Review, Dickenson respectfully urges the full Commission to review this matter and to reverse the Audio Division's action in the MO&D. Meanwhile, the action of the Audio Division should be stayed. Implementing the channel change will do great harm to Dickenson, and it should not be required to change the operating channel ofWDIC-FM until this matter has been finally adjudicated. Now that Dickenson has sought review of the involuntary allotment change, it should remain protected from having to cause disruption to its operations and to the residents of Clinchco who depend on WDIC-FM for news, weather, and entertainment by changing its operating channel until there is greater certainty, as detemlined by the action on review, that to do so would serve the public interest. While the Stay Order. supra, eliminated the automatic stay provisions of the rules, it did not eliminate the possibility of the grant of a stay in appropriate situations: Further, in order to minimize the risk of imposing significant costs on licensees or permittees required to change channels as a result ofan allotment change, we will make every effort to reach and promptly decide any petition for reconsideration filed against the underlying allotment action by such a party. Where it is not possible to do so, we retain the authority, as the commenters have noted, to impose a stay in individual cases and we will be particularly cognizant of requests for stay filed by any party whose authorization would be changed involuntarily [emphasis added.] 4 Of course, that is the situation faced by Dickenson. It has been fighting this involuntary channel change since 2004 when East Kentucky's Petition for Rule Making ripened into a Notice ofProposed Rule Making and Order to Show Cause.s Why doesn't Dickenson just "play ball" and go along with East Kentucky's demands? Because the people of the WDIC-FM service area have come to rely for 20 years (since 1991) on finding WDIC-FM at 92.1 MHz (Channel 221A) on the FM dial. In 1991, WDIC-FM's channel was involuntarily changed from Channel 226A (93.1 MHz) to its current Channel 221A at the behest of who? East Kentucky, who wanted to upgrade its co-owned WDHR, Pikeville, Kentucky.